the republic of trinidad and tobago in the...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV 2016-01170

BETWEEN

GENCON LIMITED

Claimant

AND

HAROUN BEEKHAN

Defendant

Before the Honourable Mr Justice Frank Seepersad

Appearances

1. Ms K. Peterson for the Claimant.

2. Ms V. Badrie-Maharaj for the Defendant.

Date of Delivery: 4th January, 2018

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DECISION

Overview

1. Before the Court for its determination is the Claimant’s claim by virtue of which the

following reliefs were sought:

a. A declaration that the Claimant has validly rescinded the Agreement;

b. Alternatively, rescission of the agreement;

c. Return of the sums of US$75,000.00 and TT$88,250.00;

d. Alternatively, repayment of the sums of US$75,000.00 and TT$50,000.00 being

monies had and received by the Defendant;

e. Damages for fraudulent misrepresentation.

The Claimants Case

2. The Claimant is a limited liability company incorporated under the Companies Ordinance

and continued under the Companies Act Chap 81:01. In August 2014, the Claimant

purchased a parcel of land situate in Cunupia in the Ward of Chaguanas and more

particularly described in the Schedule of the Deed dated 12th September 2014 No. DE2014-

0221132-67D001—

ALL AND SINGULAR that certain piece or parcel of land situate at Cunupia in the

Ward of Chaguanas in the Island of Trinidad, comprising SIXTEEN ACRES AND

TWO ROODS more or less (being the Eastern portion of a larger parcel of land

comprising 33 Acres and which said larger parcel of land is shown on Ward Sheet

D4 in the Office of the Lands and Surveys Department, Red House, Port-of-Spain)

and bounded on the North by the Cunupia River, on the South by Crown Lands, on

the East by lands now or formerly of Coolie Baldeo and on the West by the

remaining portion of the said larger parcel of land or howsoever otherwise the

same may be butted, bounded, known, designated or described and which said piece

or parcel of land is shown on the Photostat copy of the Survey Plan annexed to

deed dated the 29th day of May 1985 and registered as No. 9254 of 1985 and made

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between the Vendor of the First Part Vivian Jupiter of the Second Part and the

Vendor of the Third Part.

3. It is the Claimant’s case that in 2014, its Managing Director contacted the Defendant to

enquire about the purchase of the land. In order to induce the Claimant to purchase the

land, the Defendant held himself out as the lawful owner of the said land and informed him

that he owned the land and was selling same for $525,000.00 to the first buyer who would

pay the full purchase price. The said Managing Director attended the house of the

Defendant, collected him and they both visited the land where the Defendant purported to

point out its boundaries. The Defendant maintained that a title search and valuation had

been done on the lands and the Claimant relied on this representation.

4. Induced by the Defendant’s representations and in reliance thereof, the Claimant entered

into an agreement with the Defendant and paid him the sums of

US$75,000.00 and TT$50,000.00. Thereafter, the Claimant discovered that the Defendant

was not the owner of the land and further, that the title for the property was questionable

and made demand for the return of his monies.

5. The Defendant did not deny that he purported to sell the land to the Claimant and received

the monies but in the Defence at paragraph 7d stated that it is not the said parcel of land

described at the schedule to Deed 200402559845 by virtue of which the land was

transferred to Sheril Baboolal and another.

6. By its Reply, the Claimant stated, inter alia, that the Defendant did not have a good, proper

and marketable title to the said parcel of land and that there were two chains of title relating

to the subject parcel of land.

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The Defendants Case

7. The Defendant’s case is as follows:

a. The Defendant purchased the land from Al-Beruni Buckridan through his duly

constituted attorney Chanka Bhim in 2008 but the Deed was never registered.

b. The Defendant agreed to sell to the Claimant the land for $525,000.00.

c. A memorandum of understanding was prepared to transfer the land from Al-Beruni

Buckridan through his duly constituted attorney Chanka Bhim to the Claimant.

d. The Claimant was fully aware as to ownership of the said land as the Claimant’s

attorney-at-law Vindra Maharaj prepared the Memorandum of Understanding and

also prepared the Claimant’s Deed No 201402213267 from Al-Beruni Buckridan

to the Claimant.

e. The Defendant claims that he had a good title to the said land and that the said land

is different from the Baboolal’s land.

The Issues

8. The issues that arose for the Court’s determination are as follows:

1. Whether the 16 acres and 2 roods portion of land described in Deed of Conveyance

No. DE2014-0221132-67D001 is the same parcel of land described in Deed No. 9254

of 1985.

2. Whether the Defendant fraudulently misrepresented to the Claimant that he was the

owner of the land which the Claimant was shown and which he agreed to purchase

by paying the sum of $75,000.00 US and $50,000.00 TT

The Witnesses

9. The Court heard the evidence of Premchand Beharry and Steven Paul while the Defendant

relied on evidence of Haroun Beekhan. In addition, the Court received the evidence of the

expert witness Mr Abdul.

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10. The Defendant filed evidential objections on the 23rd February 2017. The Court felt that

the evidential objections were devoid of merit and found that the matters contained in the

challenged portions of the witness statements were relevant to the issues which fell to be

determined and although some of the facts contained in the witness statement of Premchand

Beharry were not premised on an expressed pleaded foundation, they formed part of the

factual matrix which operated between the parties and the information was within the

knowledge of the parties and occurred as the course of dealing between them unfolded.

Additionally, the Court found that no prejudice would be occasioned to the Defendant if

the evidence objected to, remained before the Court, since the said information was

probative and assisted the Court in the discharge of its mandate to resolve the issues in

dispute.

Resolution of Issues

11. Having considered the evidence of Mr Premchand Beharry the Court found that he was

aware that:

a. The Defendant was not the paper owner of the land and that he purchased the land

from Al Beruni Buckridan through his lawful Attorney Chanka Bhim but the deed

was not registered.

b. He also knew the land would be transferred directly to the Claimant from Al Beruni

Buckridan through his duly constituted Attorney Chanka Bhim.

12. Having considered the evidence before it, the Court found that the more reliable claim of

the said land is as follows:

a. Deed 3187 of 1954 between Irene Lalsingh and Samuel and Dorothy Lalla for 33

acres;

b. Deed 8075 of 1976 between Samuel Dukhedin Lalla and Abraham Dukhedin Lalla

for 22 acres, 1 rood and 32 perches (“22 Acre parcel”);

c. Deed 4077 of 1977 between Abraham Dukhedin Lalla and Bank of Nova Scotia

Trinidad and Tobago Limited whereby the 22 Acre parcel was subject to a mortgage;

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d. Deed 14442 of 1982 between Bank of Nova Scotia Trinidad and Tobago Limited

and Sonny Baboolal Poultry Farm Limited;

e. Deed 2004-025598-45D001 between Baboolal Poultry Farm Limited and Sheril

Lizian Baboolal and Joel Supersad.

13. During the trial, the Court directed that an expert report had to be generated so as to assist

the Court in determining whether the land referred to in Deed No. DE2014-0221132-

67D001 was the same piece of land described in Deed 9254 of 85.

14. Pursuant to the Court’s direction Mr Nasser Abdul, a director of lands and surveys, was

commissioned and settled his report and attended the trial. The Court considered the plan

annexed to the expert report as well as paragraph 6 of the Claimant’s reply and noted that

the expert concluded that:

“In my capacity as Director of Surveys, I caused Lands and Surveys Book 75 Folio

93 to be pulled. On a review of same, I determined that the 33 Acre parcel surveyed

by A.B. Stollmeyer in 1879 was the same parcel from which the 16 Acres and 2

Roods parcel and 32 perches parcel in question in this matter were derived.”

15. During the trial the Court sought further clarity and the following is the exchange which

the Court engaged with the expert:

Court: The portion of land shown on your plan of Oct 2017, are you saying that it is the

same portion of land which is reflected on the Stollmeyer plan of 1879?

A: Yes, it is.

Court: In the 1879 Stollmeyer plan, the northern boundary is the Cunupia River?

A: Yes Sir, that’s a typographical error.

Court: You are of the view that in the 1879 plan that was a typographical error?

A: No, on my plan it’s a typographical error- it was supposed to be the Cunupia River

Court: So what is referred to as Cumuto River in your plan-?

A: Is really the Cunupia River and I say that in my report itself – it’s a typographical

error on the plan. The word “Cumuto” should be replaced by “Cunupia”.

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16. The Court found that the expert’s evidence was clear, cogent and compelling and was

satisfied that he addressed his mind to and considered all the relevant Deeds and

documents.

17. Consequently, the Court formed the view that there was no rational reason to reject the

expert’s opinion.

18. The Defendant maintained that the land reflected on the plan to Deed 9254 of 85 was the

same portion of land which was sold to the Claimant. The Claimant stated that at the site

visit, the Defendant identified a parcel of land between the western most boundary of a 22

acre parcel of land and the western most boundary of the 16 acre parcel.

19. On the plan drawn by the expert the 22 acre portion of land is outlined in green and the 16

acre portion, which is the portion of land in question in this trial, was outlined in red and

fell within the 22 acre portion. On a balance of probabilities the Court found that the

property which was shown to the Claimant was in fact lands occupied by the Baboolals

and having accepted the expert’s evidence concluded that the Defendant was not the owner

of the portion of land which was shown to the Claimant.

20. The Court further found that the Defendant was aware of the Baboolals’ occupation when

the site visit was conducted and based on the chain of title referred to above it is more

probable that the Baboolals are the owners of the piece of land which was shown to the

Claimant and which the Claimant agreed to purchase.

The Law

21. According to Halsbury's Laws of England, Volume 22 (2012), paragraph 352, during the

course of the formation of a contract, one of the persons who are to become parties to the

contract may make representations to another such person. A representation is a statement

made by one party (the representor) to another party (the representee) which relates, by

way of affirmation, denial, description or otherwise, to a matter of fact or present intention.

If untrue, it may be termed a misrepresentation. A representation of fact may or may not

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be intended to have contractual force; if it is so intended, it will also amount to a term; if it

is not so intended, a positive statement is termed a mere representation.

22. In assessing whether defective performance gives rise to the right to terminate, the courts

first ask whether the term of the contract was a condition or a warranty. The significance

of this distinction is that a breach of condition entitles the innocent party to terminate the

contract and claim damages for any loss he may have suffered, regardless of the seriousness

of the breach as a matter of fact, whereas a breach of warranty only entitles him to damages:

Halsbury's Laws of England, Volume 22, paragraph 556.

23. A misrepresentation is a positive statement of fact, which is made or adopted by a party to

a contract and is untrue. It may be made fraudulently, carelessly or innocently. Where one

person ('the representor') makes a misrepresentation to another ('the representee') which

has the object and result of inducing the representee to enter into a contract or other binding

transaction with him, the representee may generally elect to regard the contract as

rescinded. In these circumstances the representee may invoke the aid of the court, which

may confirm by declaration his entitlement so to regard the contract, and grant him such

other relief as may flow directly from the fact of rescission, for example, the return of

money paid or chattels delivered by him pursuant to the terms of the contract: Halsbury's

Laws of England, Volume 76 paragraph, 701.

24. In Angela Alexander (Trading as Prestige of Maritime Centre) v Maritime Leasing

Company Limited CV 2006-02235 the relevant law was set by out by Stollmeyer J ( as

he then was) as follows:

“In brief, the law is clear and well settled. The representation must be a statement of a

present or past fact as distinct from a statement of opinion, or of intention or of law

(see e.g. Chitty on Contracts 25th Ed. Vol. 1 para. 394).

A mere statement of opinion, which proves to be unfounded, will not be treated as a

misrepresentation, nor will a simple statement of intention which is not put into effect;

for as a general rule these cannot be regarded as representations of fact, except insofar

as they show that the opinion or intention is held by the person expressing it.

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There are, of course, exceptions to this general position. One is where the person

expressing the opinion did not hold it. Another is where that person could not, as a

reasonable person, having his knowledge of the facts, have held that opinion. It will be

for the person to whom the representation was made to prove this.”

Section 2 of the Misrepresentation Act Chap 82:35 states –

“Where a person has entered into a contract after a misrepresentation has been made to

him, and—

(a) The misrepresentation has become a term of the contract; or

(b) The contract has been performed,

Or both, then, if otherwise he would be entitled to rescind the contract without alleging

fraud, he shall be so entitled, subject to this Act, notwithstanding the matters mentioned

in paragraphs (a) and (b).”

25. Snell’s Equity (30th Edition page 608 para 38-02; 31st Edition para 8-06) defines a

fraudulent misrepresentation as—

“a false statement of fact which is made by D to C knowingly, or without belief in its truth,

or recklessly, without caring whether it is true or false, with the intent it should be acted

upon and which is in fact acted upon by C. D will be liable in such a case even though the

misrepresentation was made with no corrupt motive and with no expectation of profit and

even though the person defrauded had a full opportunity of discovering the fraud or had

an agent who knew the truth.”

26. Halsbury’s Laws of England (4th Edition [2003] Reissue Vol. 31 at page 483 para 760)

states that the representee can establish fraud where “he can show that the representor

dishonestly failed to discharge the duty of disclosing the change in the situation”.

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27. It is stated further in Halsbury’s Laws of England supra page 492 para 778 that:-

“In order to sustain any claim or proceeding for misrepresentation it is necessary for the

representee to establish that he was induced by it, not merely to alter his mind, but to alter

his position, that is to say, to effect a change in his material or temporal interests or

situation”.

28. Having reviewed the evidence the court noted that the transaction proceeded with degree

of haste and this prevented the conduct of proper title searches. At the site visit the

Claimant made a request for the deposit to be held in escrow but this request was denied.

The Defendant persuaded the Claimant to rely on the title search by Allan Yorke and

assured the Claimant that the title to the land was good. In addition the Claimant was also

taken to Karla Cropper. Ultimately, the Claimant relied upon the title searches procured by

the Defendant.

29. The Court considered the directive given by Rajnauth-Lee J (as she then was) in Winston

Mc Laren vs Daniel Dickey and others CV2006-01661, where the court said

Where there is an acute conflict of evidence, the Judicial Committee of the Privy Council

has laid down the following principles in the case of Horace Reid v Dowling Charles and

Percival Bain Privy Council App. No. 36 of 1987. At page 6, Lord Ackner delivering the

judgment of the Board examined the approach of the trial judge”:

“Mr James Guthrie, in his able submissions on behalf of Mr. Reid emphasised to their

Lordships that where there is an acute conflict of evidence…the impression which their

evidence makes upon the trial judge is of great importance. This is certainly true. However,

in such a situation, where the wrong impression can be gained by the most experienced of

judges if he relies solely on the demeanour of witnesses, it is important for him to check

that impression against contemporary documents, where they exist, against the pleaded

case and against the inherent probability or improbability of the rival contentions, in the

light in particular of facts and matters which are common ground or unchallenged or

disputed only as an afterthought or otherwise in a very unsatisfactory manner. Unless this

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approach is adopted, there is a real risk that the evidence will not be properly evaluated

and the trial judge will in the result have failed to take proper advantage of having seen

and heard the witnesses.

13. Accordingly, the trial judge must check the impression that the evidence of the

witnesses makes upon him against

(i) contemporary documents, where they exist;

(ii) the pleaded case; and

(iii) the inherent probability or improbability of the rival contentions.

14. The Judicial Committee of the Privy Council adopted a similar approach in the case of

the Attorney General and another v Kalicklal Bhooplal Samlal (1987) 36 WIR 382. Lord

Ackner who delivered the judgment of the Board made the following statement at page 387:

“the trial judgment may well have reached his decision entirely as a result of the

impression made upon him by the manner in which the witnesses gave their evidence.

Indeed, it is difficult to draw any other conclusion. But a judge must check him impression

on the subject of demeanour by a critical examination of the whole of the evidence (see

Yuill v Yuill [1945] P15 at page 20). In this case the Court of Appeal were fully entitled to

conclude that he did not balance demeanour against the rest of the evidence and had thus

not taken proper advantage of having seen and heard the witnesses. It is essential when

weighing the credibility of a witness to put correctly into the scales the important

contemporaneous documents and the inherent improbability, as the Court of Appeal

percipiently pointed out, that the licence would have been granted without samples of those

tiles which were not depicted in the brochure, being produced. Thus the balancing

operation, which is of the very essence of the judicial function was not properly carried

out.”

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30. Having regard to all of the evidence including the searches, the Defendant must have been

aware that the portion of land which he showed the Claimant in July/ August 2014 did not

belong to him and he misrepresented his ownership to the Claimant. He received

substantial monies from the Claimant and has retained same. The Claimant however did

not acquire good and proper title to the portion of land which it intended to purchase and

the Defendant’s continued retention of the sums paid amounts to an affront to good

conscience as the Defendant failed to discharge the contractual obligation to furnish the

Claimant with good title. In the circumstances, there has been a complete failure of

consideration and it is unconscionable for the Defendant to retain the consideration which

was paid.

31. The Court therefore orders that the Defendant is to repay to the Claimant the sum of

$75,000.00 US or its TT dollar equivalent as well as the sum of $50,000.00TT. The

Defendant must also repay to the Claimant the sum of $38,250.00TT. Interest is to accrue

on the said sums at a rate of 1.5% from the date of the filing of the claim to the date of this

judgment and thereafter at the statutory rate of interest until repayment.

32. Upon payment of the aforesaid sums the Deed of conveyance NO. DE2014-0221132-

67D001 shall be set aside and the Registrar General shall expunge same from the records.

33. The Defendant shall pay to the Claimant costs calculated on a prescribed basis based on

the sums awarded.

__________________________

FRANK SEEPERSAD

JUDGE

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